| Matter of Chassidy CC. (Andrew CC.) |
| 2011 NY Slip Op 03692 [84 AD3d 1448] |
| May 5, 2011 |
| Appellate Division, Third Department |
| In the Matter of Chassidy CC., a Child Alleged to be Neglected.Rensselaer County Department of Social Services, Respondent; Andrew CC.,Appellant. |
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Kavanagh, J. Appeal from an order of the Family Court of Rensselaer County (E. Walsh, J.),entered February 8, 2010, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 10, to adjudicate respondent's child to be neglected.
In August 2009, petitioner commenced this proceeding alleging that respondent neglected hischild (born in 2005) as a result of his refusal to responsibly address his problem of substanceabuse, his use of marihuana in the child's presence and his failure to provide proper supervisionwhen the child was entrusted to his care. After fact-finding and dispositional hearings wereconducted, Family Court (Hanft, J.)[FN1]found that the child was neglected and, as a [*2]result, the childwas placed in the custody of her maternal grandmother. Respondent now appeals, challengingonly the finding of neglect.
Respondent argues that petitioner failed to establish that the child was neglected because itdid not introduce evidence at the hearing that the child was ever in any actual or imminent dangerwhile respondent was caring for her (see Family Ct Act § 1012 [f] [1]).[FN2]We disagree. A finding of neglect under Family Ct Act § 1046 (a) (iii) can be based onevidence that respondent "repeatedly misuse[d] a drug or drugs or alcoholic beverages, to theextent that it has or would ordinarily have the effect of producing in [respondent] a substantialstate of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or asubstantial impairment of judgment, or a substantial manifestation of irrationality." In otherwords, neglect may in some circumstances be presumed if the parent chronically and persistentlymisuses alcohol and drugs which, in turn, substantially impairs his or her judgment while a childis entrusted to his or her care (see Family Ct Act § 1046 [a] [iii]; Matter of Paolo W., 56 AD3d 966,967-968 [2008], lv dismissed 12 NY3d 747 [2009]; see also Matter of Alfonzo H. [Cassie L.], 77 AD3d 1410, 1411[2010]; Matter of Arthur S. [RoseS.], 68 AD3d 1123, 1123-1124 [2009]).
In 2008, respondent was sentenced to probation after being convicted of petit larceny and, asa condition of his probation, was required to submit to treatment for his substance abuse andrefrain from using alcohol or drugs. Despite this prohibition, respondent continued to consumeboth marihuana and alcohol, tested positive for drugs and subsequently pleaded guilty to aviolation of probation for which he received a nine-month term of incarceration. We also notethat, during this period, respondent was charged with failing to properly supervise his daughterand provide her with appropriate living arrangements because he repeatedly left her unsupervisedand alone in a room he and his family occupied at a homeless shelter. Simply stated, respondent'sinsistence on using drugs and alcohol clearly impaired his ability to make appropriate parentaljudgments which, in turn, impacted his efforts to provide proper care for this child. Therefore, thefinding of neglect as entered by Family Court was established by a preponderance of the credibleevidence and enjoyed sound and substantial support in the record (see Family Ct Act§ 1046 [b] [i]). Finally, any error that may have occurred as a result of Family Court(Hanft, J.) giving collateral estoppel effect to respondent's convictions for violating probation (see generally Matter of Stephiana UU.,66 AD3d 1160, 1165 [2009]) was rendered harmless by testimony given by respondent'sprobation officer at the hearing that provided an evidentiary basis that could properly beconsidered by the court in determining whether respondent had neglected the child.
Mercure, J.P., Lahtinen, Malone Jr. and Garry, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: Both hearings were conductedbefore Judge Hanft, who determined that the child had been neglected and placed her with hermaternal grandmother. However, because Judge Hanft was no longer available, Judge Walshsigned the order of fact-finding and disposition (see CPLR 9002).
Footnote 2: As for respondent's contentionthat petitioner failed to establish that the child was under the age of 18, we note that the petitionset forth the child's date of birth and Family Court took judicial notice of that fact.